The Idaho Court of Appeals has thrown out the convictions of a man who was sentenced to 20 years in prison for sex crimes after the prosecutor in the case quoted lyrics from the Southern Civil War song “Dixie” at his trial.
NBC News reports all three judges on the panel agreed that Canyon County Deputy Prosecutor Erica Kallin tainted James Kirk’s trial by “injecting the risk of racial prejudice into the case.”
Kirk was convicted in 2013 of lewd conduct with a 17-year-old girl and sexual battery of a 13-year-old girl, according to the Idaho Statesman.
During her closing arguments at the trial Kallin quoted the song, saying Kirk’s attorney was asking jurors to ignore evidence.
(L: James Kirk / R: Erica Kallin)
"Ladies and gentlemen, when I was a kid we used to like to sing songs a lot,” she told the jurors. “I always think of this one song. Some people know it. It's the Dixie song. Right? ‘Oh, I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away.’ And isn't that really what you've kind of been asked to do?
“Look away from the two eyewitnesses,” Kallin continued. “Look away from the two victims. Look away from the nurse in her medical opinion. Look away, look away.”
After Kirk’s conviction and sentencing, Eric Fredericksen of the State Appellate Public Defender's Office asked the appeals court to throw out the conviction because Kallin had potentially prejudiced the jury with the racial overtones of the song.
Kenneth Jorgensen of the Idaho Attorney General's Office argued that that had not been Kallin’s intention. The appeals court judges said that didn’t matter.
“This prosecutor may not have intended to appeal to racial bias, but a prosecutor's mental state, however innocent, does not determine the message received by the jurors or their individual responses to it,” wrote Judge Karen Lansing in her opinion dated Dec. 19.
“An invocation of race by a prosecutor, even if subtle and oblique, may be violative of due process or equal protection,” Lansing added in the opinion.
Judges David Gratton and John Melanson concurred.
The judges overturned Kirk’s convictions and ordered the case back to Canyon County for another trial.
Jorgensen has until Jan. 9 to decide if he wants to appeal the decsion to the Idaho Supreme Court.
Canyon County spokesman Joe Decker told the Idaho Press-Tribune Jorgensen is still reviewing Lansing’s opinion. If he decides not to appeal the decision, the case will be tried again at the county level.